A. In a case where the purchaser of a real estate takes over the obligation regarding the subject matter of sale and agrees to deduct the amount of such obligation from the purchase price, the nature of the assumption of the obligation (i.e., acceptance of performance) and whether the purchaser has fulfilled his/her obligation to pay the balance by paying the remainder after deducting the amount of obligation from the purchase price (affirmative with qualification), and whether the above assumption of obligation is valid even without the creditor’

B. Whether a seller may rescind a sales contract on the ground that the seller may rescind the sales contract if the auction procedure commenced for the subject matter of sale as a result of the buyer’s negligence in performing his/her obligation to accept the obligation, and the seller paid the obligation to prevent the progress of the auction procedure (affirmative)

(c) Scope of the relationship between the parties to the performance for which the right of defense of simultaneous performance is recognized.

D. Whether, where a real estate sales contract and a performance acquisition contract are entered into together as mentioned in the above Paragraph A, a buyer’s default on a buyer’s obligation of acceptance, or a buyer’s obligation of compensation due to a buyer’s voluntary repayment, or a seller’s obligation of registration of transfer of ownership is concurrently performed

A. In a case where the purchaser of a real estate has agreed to take over the secured debt, provisional attachment and the obligation to return a lease deposit with respect to the subject matter of sale and to deduct the amount of such obligation from the purchase price, barring any other special agreement, it shall be deemed a performance takeover rather than the assumption of the obligation to exempt the seller, and barring any special circumstance, it shall not be interpreted that the purchaser bears the obligation to actually pay the said obligation, and the purchaser has fulfilled the obligation to pay the remainder after deducting the amount of the obligation from the purchase price. In addition, the content of the above agreement is to have the buyer pay the seller's obligation under a contract between the seller and the buyer, and the buyer bears the seller's obligation to pay the seller's obligation as a third party, so it is impossible to set up against the buyer, and thus,

(b) If a voluntary auction procedure commences by the exercise of a right to collateral security with respect to the subject matter of sale by neglecting the repayment of the secured obligation, which is a part of a debt underwriter, and the seller has repaid the secured obligation in order to prevent the progress of the auction procedure, the seller may rescind the sales contract for the reason other than the acquisition of the damage claim against the assignee.

C. The right to defense of simultaneous performance should be recognized in cases where there are circumstances to recognize the performance-related relationship because it is of a quid pro quo meaning between the obligations borne by both parties in a specific contract relationship, even though each obligation under the bilateral contract is not an inherent quid pro quo relationship in which both parties are liable.

D. In a case where a performance acquisition contract was entered into with a real estate sales contract as mentioned in the above Paragraph A, the obligation assumed by the buyer is substituted for a payment obligation of the purchase price, and in a case where the seller pays the buyer's obligation for nonperformance or at will on behalf of the buyer due to the buyer's default, the obligation for compensation or indemnity arising therefrom is a transformation of the buyer's obligation for payment of the purchase price, and thus, the buyer's obligation for compensation or indemnity and the seller's obligation for registration of transfer of ownership are deemed to be in a close relationship in terms of performance, and therefore, both are in accord with the concept of fairness and the

a.B. Article 454 of the Civil Code. Section 54(b) of the Civil Code. Section 543(c) of the Civil Code. Article 536 of the Civil Code

A. Supreme Court Decision 91Da38341 delivered on July 24, 1992 (Gong1992, 2517), Supreme Court Decision 91Da30927 delivered on August 18, 1992 (Gong1992, 2737), 42Da25656 delivered on October 9, 192 (Gong192, 316)

Plaintiff

Defendant-Appellee et al., Counsel for the defendant-appellant

Seoul High Court Decision 91Na30493 delivered on May 8, 1992

The appeal is dismissed.

The costs of appeal are assessed against the defendant.

As to the Grounds of Appeal

1. We examine the grounds of appeal Nos. 1 and 2.

A. According to the reasoning of the judgment below, the defendant concluded a contract with the plaintiff on June 26, 198, which was 100 won for the remaining 5th anniversary of the payment of the purchase-price for the above 10th anniversary of the fact that the plaintiff did not pay the remainder of the purchase-price for the above 10th anniversary of the acquisition-price for 100,000 won for the remainder of the 20th anniversary of the remainder of the purchase-price for 10th anniversary of the acquisition-price for the above 10th anniversary of the remainder of the purchase-price for 10th anniversary of the fact that the plaintiff did not pay the remainder of the purchase-price for the above 5th anniversary of the acquisition-price for 10th of the remainder of the purchase-price for 10th of the purchase-price for 1st of the above 30th of the purchase-price, and the defendant did not pay the remainder of the 1st of the 30th of the purchase-price for 20th of the above real estate.

B. As in the instant case, in a case where the purchaser of a real estate takes over the secured debt, provisional attachment and the obligation to return a lease deposit with respect to the subject matter of sale, and there is an agreement to deduct the amount of such obligation from the purchase price, barring any other special agreement, it shall be deemed a performance takeover rather than the assumption of the obligation to discharge the seller, and it shall not be interpreted that the purchaser bears the obligation to discharge the above obligation (see Supreme Court Decision 88Meu29467, Jan. 25, 1990). Barring special circumstances, barring any special circumstance, the purchaser performed the obligation to pay the balance by paying the remainder after deducting the above obligation from the purchase price (see Supreme Court Decision 4290Sang18, Jun. 29, 195). In addition, the content of the said agreement is that the buyer and the seller have to pay the seller's obligation under a contract with the seller, and the buyer is obligated to pay the seller's obligation only to the seller as a third party's position, and thus it shall be established between the parties.

Therefore, the judgment of the court below is correct as it is in accordance with the above legal principles, and there is no illegality such as the theory of lawsuit.

C. However, if, as alleged by the Defendant, the Plaintiff neglected to repay the secured debt of the instant case, which is a part of the assignee’s obligation, and thus, the auction procedure commences as to the subject matter of the instant sale and the Defendant makes it inevitable for the Defendant to pay the secured debt of the said right to prevent the progress of the auction procedure, the Defendant may rescind the instant sales contract with the Plaintiff for reasons other than the acquisition of the damage claim against the Plaintiff (see Supreme Court Decision 91Da38341, Jul. 24, 1992).

(1) The Plaintiff’s failure to perform the obligation of acquiring this case and the Defendant’s repayment of this case’s obligation can be evaluated as identical to the Plaintiff’s failure to pay part of the purchase price, and (2) the Plaintiff is obligated to perform the obligation in accordance with the content of the obligation to pay the purchase price, and the purport of the above “the Plaintiff paid the Defendant the balance remaining after deducting the acquisition amount from the purchase price, thereby fulfilling its obligation to pay the purchase price,” is that the Plaintiff faithfully performs the obligation (i.e., the Plaintiff’s failure to perform the obligation of acquiring this case’s obligation does not occur). Accordingly, if the Plaintiff’s failure to perform this obligation and the Defendant makes the secured obligation inevitable due to the Defendant’s failure to perform it, it shall be deemed that the Plaintiff still failed to perform its obligation to pay the purchase price.

Therefore, the court below erred by misapprehending the legal principles mentioned above, and it is interpreted that the court below erred in the misapprehension of the legal principles as mentioned above, and the case constitutes "special circumstances" as stated by the court below, and thus, the court below erred in the misapprehension of the legal principles, since the court below's decision is erroneous in the misapprehension of the legal principles that the plaintiff's obligation to pay the plaintiff's money much higher than the purchase price of this case was performed as a result of the plaintiff's payment prior to the date of notification of the cancellation of the sale and purchase contract by the defendant.

D. However, even if the contract of this case has the right of rescission to the defendant, there is no evidence that the defendant performed the obligation to transfer ownership or provided the performance of the obligation to oppose the defendant when the defendant gives notice of rescission as alleged. Thus, the conclusion that the court below rejected the defendant's letter of rescission is justified, and therefore, the court below's error did not affect the judgment, and therefore, the argument is without merit.

2. We examine the third ground for appeal.

A. Then, the court below rejected the defendant's assertion that "the plaintiff's payment of the remaining amount was delayed, and the non-party Heung Korea Life Insurance Co., Ltd., a collateral security right holder applied for voluntary auction of the real estate of this case on November 15, 1989, the defendant paid the above collateral amount inevitably around that time, and the non-party 3 was also repaid the collateral amount, and the lease deposit was also partially repaid by the defendant. Since all of these are the obligations agreed to be accepted by the plaintiff, they cannot respond to the plaintiff's claim of this case before the payment was made." The defendant's assertion that "the defendant's payment of each of the above obligations is not only after the plaintiff paid the remaining amount, but also after the plaintiff paid the entire payment, the defendant voluntarily subrogated each of the above obligations to be borne by the plaintiff, and it cannot be viewed that the defendant's obligation to transfer ownership registration under the above sales contract and obligation to reimburse the defendant as the subrogation for the defendant as a simultaneous performance relation.

B. The right to defense of simultaneous performance is acknowledged when each obligation borne by the parties to a bilateral contract is related to one another in terms of a quid pro quo and the principle of good faith. The parties are entitled to refuse the other party's performance when one party claims performance of the other party's obligation without performing his/her own obligation or providing the other party's obligation. In light of the purport of this system, even if each obligation borne by both parties is not an obligation under the bilateral contract in terms of a quid pro quo relationship, the right to defense of simultaneous performance should be acknowledged in cases where there are circumstances to recognize a quid pro quo relationship in terms of a quid pro quo relationship in a specific contract relationship (see Supreme Court Decision 91Da30927 delivered on August 18, 1992).

C. In a case where the performance acquisition contract as in the instant case was entered into with the real estate sales contract, the obligation which the buyer assumed is substituted for the payment obligation of the purchase price. If the Defendant paid the Plaintiff’s obligation of acceptance (in relation to the non-party 3 and the lessee) or at will on behalf of the Plaintiff (in relation to the non-party 3 and the lessee) due to the Plaintiff’s nonperformance of the obligation of acceptance, the liability for compensation or indemnity arising therefrom is a transformation of the above obligation of acceptance, which is substituted for the payment obligation of the purchase price, and thus, it is recognized that the above obligation of the Plaintiff’s compensation or indemnity and the obligation of the Defendant’s transfer of ownership in the instant case are in a relation of performance as the compensatory meaning, and therefore, the two are reasonable in terms of the concept

Therefore, the court below rejected the defense of the defendant, even though it had deliberated further on whether the defendant's defense was well-grounded, and the court below erred by misapprehending the legal principles on simultaneous performance defense, which led to failure to exhaust all necessary deliberations.

D. However, according to the records, the defendant's own contribution to pay the plaintiff's debt, and the non-party company established a collateral security right in the name of the mutual savings and finance company Dong-gu, Dong-gu, and paid the loan from the above non-party company for the real estate of this case, and the secured debt amount is much more than the above secured debt amount. If the registration of ownership transfer of the real estate of this case was made under the name of the plaintiff, the secured debt amount cannot be attributed to the plaintiff's expense. Thus, the plaintiff's debt which the plaintiff decided to accept is the result of the non-performance of the plaintiff's debt at all. Thus, the defendant's defense of simultaneous performance cannot be raised on the ground that the defendant has a claim for reimbursement due to the above repayment.

Therefore, the court below's rejection of the defendant's simultaneous performance argument is justified as a result, and the above error of the court below does not affect the judgment at all, and the arguments are without merit.

3. Accordingly, the appeal is dismissed and all costs of appeal are assessed against the losing defendant. It is so decided as per Disposition by the assent of all participating Justices.

Justices Kim Sang-won (Presiding Justice)